Citation Nr: 0636786
Decision Date: 11/28/06 Archive Date: 12/06/06
DOCKET NO. 05-10 572A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to service connection for non-Hodgkin's lymphoma,
claimed as due to herbicide exposure (Agent Orange).
ATTORNEY FOR THE BOARD
L. M. Barnard, Counsel
INTRODUCTION
The veteran had active service from October 1962 to October
1964.
This appeal arose before the Board of Veterans' Appeals
(Board) from an August 2003 rating decision of the Denver,
Colorado, Department of Veterans Affairs (VA) Regional Office
(RO), which denied entitlement to the requested benefit. The
case was subsequently transferred to the jurisdiction of the
Portland, Oregon, RO.
FINDINGS OF FACT
The veteran's diagnosed non-Hodgkin's lymphoma cannot be
related to his period of service, to include exposure to
Agent Orange or other herbicide agents.
CONCLUSION OF LAW
Non-Hodgkin's lymphoma was not incurred in or aggravated by
service, nor may it be presumed to have been incurred or
aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,
1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2006);
38 C.F.R. §§ 3.159, 3.307. 3.309(e) (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duty to notify and assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2006).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; and (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in his possession that
pertains to the claim, in accordance with 38 C.F.R.
§ 3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable RO decision on a claim for VA
benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004);
see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on
other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
As noted, in Pelegrini, the U.S. Court of Appeals for
Veterans Claims held in part that a VCAA notice, as required
by 38 U.S.C.A. § 5103(a), must be provided to a claimant
before the initial RO decision. In the present case, this
was done.
In the Mayfield case, the U.S. Court of Appeals for the
Federal Circuit addressed the meaning of prejudicial error
(38 U.S.C.A. § 7261(b)), what burden each party bears with
regard to the Court's taking due account of the rule of
prejudicial error, and the application of prejudicial error
in the context of the VCAA duty to notify (38 U.S.C.A.
§ 5103(a)). The Federal Circuit held, in effect, that the
Board must specify what documents satisfy the duty to provide
notice to a claimant, and that the Court of Appeals for
Veterans Claims must, if a case is appealed to the Court,
specifically review the Board's findings regarding such
notice. Considering the decisions in Pelegrini and Mayfield,
the Board finds that the requirements of the VCAA have been
satisfied in this matter, as discussed below.
In a March 2003 letter, the RO informed the veteran of its
duty to assist him in substantiating his claim under the
VCAA, and the effect of this duty upon his claim. He was
informed of the evidence that was needed to substantiate his
claim, as well as of what information and evidence VA would
obtain in his behalf and what evidence and information he
could submit. He was told that he could submit any evidence
relevant to his claim.
The Board concludes that the notifications received by the
veteran adequately complied with the VCAA and subsequent
interpretive authority, and that he has not been prejudiced
in any way by the notice and assistance provided by the RO.
Likewise, it appears that all obtainable evidence identified
by the veteran relative to his claims has been obtained and
associated with the claims file, and that neither he nor his
representative has identified any other pertinent evidence,
not already of record, which would need to be obtained for a
fair disposition of this appeal. Thus, for these reasons,
any failure in the timing or language of VCAA notice by the
RO constituted harmless error. See also Conway v. Principi,
353 F.3d 1359, 1374 (2004), holding that the Court of Appeals
for Veterans Claims must "take due account of the rule of
prejudicial error."
Accordingly, we find that VA has satisfied its duty to assist
the veteran in apprising him as to the evidence needed, and
in obtaining evidence pertaining to his claims, under both
former law and the VCAA. The Board, therefore, finds that no
useful purpose would be served in remanding this matter for
yet more development. Such a remand would result in
unnecessarily imposing additional burdens on VA, with no
additional benefit flowing to the veteran. The Court of
Appeals for Veterans Claims has held that such remands are to
be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en
banc), vacated on other grounds sub nom. Winters v. Gober,
219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet.
App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430
(1994). See also Livesay v. Principi, 15 Vet. App. 165, 178
(2001) (en banc).
In addition to the foregoing harmless-error analysis, to
whatever extent the recent decision of the Court in Dingess
v. Nicholson, 19 Vet. App. 473 (2006), requires more
extensive notice in claims for compensation, e.g., as to
potential downstream issues such as disability rating and
effective date, the Board finds no prejudice to the veteran
in proceeding with the present decision. Since the claim for
service connection is being denied, any such matters are
moot.
II. Applicable laws and regulations
Service connection may be granted for disability which is the
result of disease or injury incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2006);
38 C.F.R. § 3.303(a) (2006).
To establish service connection, there must be (1) medical
evidence of a current disability; (2) medical, or in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and (3) medical evidence
of a nexus between the claimed in-service disease or injury
and the current disability. See Hickson v. West, 12 Vet.
App. 247, 253 (1999).
A veteran who, during active military, naval, or air service,
served in the Republic of Vietnam during the period beginning
on January 9, 1962, and ending on May 7, 1975, will be
presumed to have been exposed to a herbicide agent during
such service, unless there is affirmative evidence which
establishes that the veteran was not exposed to any such
herbicide agent. 38 U.S.C.A. § 1116(f); 38 C.F.R.
§ 3.307(a)(6)(iii). "Service in the Republic of Vietnam"
means actual service in-country in Vietnam from January 9,
1962, through May 7, 1975, and includes service in the waters
offshore, or service in other locations if the conditions of
service involved duty or visitation in the Republic of
Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). See VAOPGCPREC 7-93
(holding that service in Vietnam does not include service of
a Vietnam era veteran whose only contact with Vietnam was
flying high-altitude missions in Vietnamese airspace); and
VAOPGCPREC 27-97 (holding that mere service on a deep-water
naval vessel in waters off-shore of the Republic of Vietnam
is not qualifying service in Vietnam).
The governing regulation is 38 C.F.R. § 3.309(e):
Disease associated with exposure to certain herbicide agents.
If a veteran was exposed to an herbicide agent during active
military, naval, or air service, the following diseases shall
be service-connected if the requirements of §3.307(a)(6) are
met even though there is no record of such disease during
service, provided further that the rebuttable presumption
provisions of §3.307(d) are also satisfied.
* Chloracne or other acneform disease consistent with
chloracne
* Type 2 diabetes (also known as Type II diabetes mellitus
or adult-onset diabetes)
* Hodgkin's disease
* Chronic lymphocytic leukemia
* Multiple myeloma
* Non-Hodgkin's lymphoma
* Acute and subacute peripheral neuropathy
* Porphyria cutanea tarda
* Prostate cancer
* Respiratory cancers (cancer of the lung, bronchus,
larynx, or trachea)
* Soft-tissue sarcoma (other than osteosarcoma,
chondrosarcoma, Kaposi's sarcoma, or mesothelioma)
Note 1: The term soft-tissue sarcoma includes the following:
* Adult fibrosarcoma
* Dermatofibrosarcoma protuberans
* Malignant fibrous histiocytoma
* Liposarcoma
* Leiomyosarcoma
* Epithelioid leiomyosarcoma (malignant leiomyoblastoma)
* Rhabdomyosarcoma
* Ectomesenchymoma
* Angiosarcoma (hemangiosarcoma and lymphangiosarcoma)
* Proliferating (systemic) angioendotheliomatosis
* Malignant glomus tumor
* Malignant hemangiopericytoma
* Synovial sarcoma (malignant synovioma)
* Malignant giant cell tumor of tendon sheath
* Malignant schwannoma, including malignant schwannoma
with rhabdomyoblastic differentiation (malignant Triton
tumor), glandular and epithelioid malignant schwannomas
* Malignant mesenchymoma
* Malignant granular cell tumor
* Alveolar soft part sarcoma Epithelioid sarcoma
* Clear cell sarcoma of tendons and aponeuroses
* Extraskeletal Ewing's sarcoma
* Congenital and infantile fibrosarcoma
* Malignant ganglioneuroma
Note 2: For purposes of this section, the term acute and
subacute peripheral neuropathy means transient peripheral
neuropathy that appears within weeks or months of exposure to
an herbicide agent and resolves within two years of the date
of onset.
After the evidence has been assembled, it is the Board's
responsibility to evaluate the entire record. See
38 U.S.C.A. § 7104(a). When there is an approximate balance
of evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v.
Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that
"a veteran need only demonstrate that there is 'an
approximate balance of positive and negative evidence' in
order to prevail." To deny a claim on its merits, the
preponderance of the evidence must be against the claim. See
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing
Gilbert, 1 Vet. App. at 54.
III. Factual background and analysis
The veteran has asserted that he served in Vietnam at Da Nang
from April to September 1963. He reported that he had been
part of a group of eight men from the 4th Armored Division,
16th Artillery, that had been stationed in Nurnberg, Germany,
and had been sent to Vietnam on a special assignment. As a
result, he said that he was exposed to herbicides which led
to the development of his non-Hodgkin's lymphoma.
The veteran's DD Form 214 shows that he had 1 year, 5 months,
and 23 days of foreign service in Europe. The service
medical records indicate that he served in Germany. The
National Records Personnel Center (NPRC) has stated that
there are no records which indicate that he had had any
service in Vietnam.
The veteran's service medical records are completely silent
as to any complaints of, or treatment for, non-Hodgkin's
lymphoma. The October 1964 separation examination was
completely within normal limits.
The veteran has submitted voluminous treatment records from
VA and from the Social Security Administration. These show
that he was initially diagnosed with non-Hodgkin's lymphoma
in 1991. He underwent chemotherapy at that time, as well as
in 1993 and 1995.
Upon careful review of the evidence of record, the Board
finds that service connection for non-Hodgkin's lymphoma has
not been established. There is no objective evidence, nor is
it contended, that this disorder was present during the
veteran's period of service. Therefore, service connection
on a direct basis cannot be awarded.
The Board recognizes that the veteran asserts his condition
was caused by exposure to herbicides he sustained while
serving in Vietnam in 1963. We regret having to discount
this assertion, but we are obligated to rely upon official
military records in such matters, and there is no official
indication that the veteran ever had any service in Vietnam.
The objective records show that he served in Germany. While
he has stated that he was temporarily assigned to Vietnam,
the NPRC has been unable to verify any such duty. In fact,
they noted in May 2003 that there were no records to indicate
any service in Vietnam. The available records also do not
suggest that the veteran was exposed to herbicides at any
time during his service. Therefore, while non-Hodgkin's
lymphoma is a disease that can be presumed to be related to
exposure to herbicides in service, there is no indication
that the veteran was so exposed, either in Vietnam or at any
other time during his service. Therefore, entitlement to
service connection on a presumptive basis has not been
demonstrated. As a consequence, it cannot be found that
entitlement to service connection has been established.
In conclusion, it is found that the preponderance of the
evidence is against the veteran's claim for service
connection for non-Hodgkin's lymphoma due to exposure to
herbicides.
ORDER
Entitlement to service connection for non-Hodgkin's lymphoma,
claimed as due to herbicide exposure (Agent Orange) is
denied.
__________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs